Free Motion in Limine - District Court of Arizona - Arizona

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Law Office of James Burr Shields 382 East Palm Lane Phoenix, Arizona 85004-1531 (602) 307-0780 (Office) (602) 307-0784 (Facsimile)
James Burr Shields II, State Bar #011711 John A. Conley, State Bar #016429 Blake Simms, State Bar #021595 Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT IN AND FOR THE STATE OF ARIZONA

) ) ) ) ) Plaintiffs, ) ) vs. ) ) Home Mortgage, Inc., an ) Arizona corporation conducting ) business in Arizona, ) Carl Brown; ) Molly Brown; ) Greg Brown; ) Jane Doe Brown; ) ) Defendants. ) ____________________________)

Cathleen Channel, Theresa Wharry, Stacie Hanson, Monique Nichols,

Case No. CIV 2003-0100 PHX ROS PLAINTIFFS' MOTION IN LIMINE ­ TESTIMONY REGARDING DESTRUCTION OF CORPORATE RECORDS

Plaintiffs Cathleen Channel, Theresa Wharry, Stacie Hanson, and Monique Nichols, by and through counsel undersigned, hereby file this Motion in Limine. Plaintiffs hereby request the Court order Defendants from testifying that a former HMI landlord destroyed HMI's records. The law in support of this request is below. MEMORANDUM OF POINTS AND AUTHORITIES Plaintiffs, in this action, is seeking to hold liable for a judgment they obtained against HMI Defendants Carl Brown and Molly Brown, the 99% shareholders of HMI. One indicia of alter ego status that will allow a plaintiff to pierce an entity's corporate veil is a lack of corporate records. See, e.g., Standage v. Standage, 147 Ariz. 473, 476, 711 P.2d 612, 615 (Ariz. Ct. App. 1985). Defendant Carl Brown has conceded HMI has no corporate records.
Document 148 Filed 07/20/2007 Page 1 of 3

Case 2:03-cv-00100-ROS-MEA

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Defendant Carl Brown has testified HMI's lack of corporate records is the result of a dispute between HMI and one of HMI's landlords. It is clear, though, Defendant Carl Brown's knowledge on this issue derived from discussions he or his agents have had with a third party. Any testimony regarding the alleged destruction of records from Defendant Carl Brown, then, will be hearsay. Defendant Carl Brown has not sought to bring forward any witness with first hand knowledge of any destruction of records. Rule 802 of the Federal Rules of Evidence states, "Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress." Fed. R. Evidence 802. The rules define hearsay as "a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to proved the truth of the matter asserted." Fed. R. Evidence 801(c). Defendant Carl Brown, in attempting to provide testimony that HMI's former landlord destroyed HMI records, is providing information based on a statement he did not make. Defendant Carl Brown is offering the statement in order to prove the truth of the matter asserted, i.e., that the landlord destroyed HMI's corporate records. Plaintiffs, based on the foregoing, requests the Court order Defendants Carl Brown and Molly Brown to refrain from testifying about the alleged destruction of HMI's records. RESPECTFULLY SUBMITTED this 20th day of July, 2007. LAW OFFICE OF JAMES BURR SHIELDS

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____s/ W. Blake Simms__________________ James Burr Shields Blake Simms Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on the 20th day of July, 2007, I electronically submitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: James M. McGee, Esq. P.O. Box 460 Cottonwood, Arizona 86326 [email protected] Attorney for Defendants and a copy has been e-mailed to Judge Silver. ____s/ Gail Ivey___________________

Case 2:03-cv-00100-ROS-MEA

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